This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-0553

State of Minnesota,

Respondent,

vs.

Johnny Carter,

Appellant

Filed December 14, 2015

Affirmed

Harten, Judge

Stearns County District Court

File No. 73-CR-11-11287

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Carl Ole Tvedten, Assistant County 

Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and 

Harten, Judge. 

 

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant argues that the district court abused its discretion in revoking his 

probation because the need for his confinement did not outweigh the policies favoring 

probation. Because we see no abuse of discretion, we affirm.

FACTS

Following an incident in December 2011, appellant Johnny Carter, a resident of 

St. Cloud, Minnesota, was charged with felony DWI, felony DWI (refusal to submit to 

chemical test), and gross misdemeanor driving after cancellation. He pleaded guilty to 

felony DWI (refusal to submit to chemical test) in exchange for dismissal of the other 

counts, the right to move for a downward dispositional departure (66 months in prison, 

stayed), or, if the district court did not agree to the departure, a bottom-of-the-box 57-

month sentence, executed.

In July 2012, appellant was sentenced to 66 months (the midpoint of the range for 

someone with appellant’s criminal history score of 5) in prison, stayed; probation for 

seven years; 365 days in jail; abstention from the use of alcohol; and participation in an 

Intensive Supervision Program (ISP) until released by the agent. 

In July 2013, appellant was convicted of gross-misdemeanor driving after 

cancellation. In October 2013, he tested positive for alcohol consumption, and a 

probation violation report was filed. At the hearing, he was sentenced to 30 days in jail 

with work-release privileges or electronic monitoring with house arrest and to follow the 

recommendations of a chemical dependency evaluation.
3

In June 2014, appellant again tested positive for alcohol consumption with a

preliminary breath test (PBT) result of .026. He therefore failed to complete the ISP. A 

probation violation report was filed; at the hearing, appellant admitted the violations and 

was sentenced to 45 days in jail (two weeks on house arrest with electric monitoring, the 

remainder in jail with work-release privileges). 

In September 2014, appellant once more tested positive for alcohol consumption 

with a PBT of .021 and, again, failed to complete the ISP. A probation violation report 

was filed; appellant was sentenced to 60 days in jail and ordered to complete a cognitive 

MRT program and an updated chemical dependency evaluation and to follow the 

recommendations. 

Over the weekend of 22-23 November, appellant called the ISP whereabouts line 

to report that he was at home in St. Cloud. His agent then went to appellant’s residence 

to administer a breathalyzer test and discovered that appellant was not at home.

Suspecting that appellant was drinking and therefore trying to avoid him, the agent 

attempted to contact appellant by leaving messages on his cell phone, visiting his 

residence again, and leaving a message with appellant’s girlfriend that appellant should 

call the agent.

On the morning of Monday, 24 November, appellant was at home in St. Cloud. 

However, he called the agent and said he was at his sister’s residence in Chanhassen. 

Because this trip had not received the required pre-approval from the agent, it was an ISP 

violation. When the agent asked appellant if they could meet immediately, appellant said 

he could not get a ride until the next day. The agent told appellant to call the ISP 
4

whereabouts line when he returned to St. Cloud and filed another probation violation 

report. 

Appellant did not call the agent until Wednesday, 26 November. Again, although 

he was at home, he told the agent he was in Chanhassen and would take an extended 

urine alcohol test (ETG). The agent believed that this test would be useless if appellant 

had consumed alcohol on 22 November and told appellant that a probation violation 

report had been filed, a warrant had been requested, and therefore appellant would be 

taken into custody. Appellant, knowing that the agent would recommend prison, told the 

agent he would stay in Chanhassen for Thanksgiving the following day. 

On 11 December, appellant was arrested on a warrant. At the probation violation 

hearing, he denied the events of 22-26 November. Another probation report was filed,

but the hearing on that violation was continued at appellant’s request. When the hearing

was held, the state asked for execution of the 66-month prison sentence imposed in July 

2012; appellant asked for jail time, chemical dependency treatment, and probation. 

At the hearing, appellant testified that he called the agent to say he was at home on 

Saturday 22 November, left his home for Chanhassen “shortly after that,” around 8:30

p.m., and returned home around 2:00 or 2:30 Sunday morning. He testified that he did 

not call the agent until Monday morning, 24 November, and, although he was then at

home, he told the agent he was in Chanhassen because he “didn’t want him [the agent] 

coming to [his] house.” When asked if he had tried to evade his agent between his 24 

November phone call and his 11 December arrest, appellant answered that the agent had 

told him on the phone, “I’m going to put out a warrant” and further testified that, because 
5

the warrant had been put out, appellant did not get a test on the morning of the 24

November at his treatment facility in St. Cloud. 

The district court told appellant:

[Y]ou’ve been given more than the average number of 

chances a person would have to be successful on 

probation. . . . [Y]ou reverted to drinking again and that gave 

you three violations in a fairly short period of time. And even 

though there is no absolute proof that you were consuming 

alcohol in November of this year [2014], it’s hard to come up 

with any conclusion other than that, given the pattern of not 

being available to surveillance. You knew that [an agent] 

would be there on a moment’s notice to test you if they had 

missed you by accident. And I come to the conclusion that 

you were avoiding the agent because you knew you had been 

drinking and you didn’t want to go to jail for another 45-or 

60-day stint, or worse. And what you ended up doing was 

basically eliminating any chance to get another chance on 

probation. . . . The violations of absconding for that length of 

time, not being available for testing, and eventually avoiding 

and being dishonest with the agent, those are all extremely 

serious violations that were inexcusable and intentional. . . . 

[Your] confinement is necessary to protect the public from 

further criminal activity. 

Appellant challenges the revocation of his probation and the execution of his 

sentence, arguing that the policies favoring probation outweighed his need for 

confinement.

D E C I S I O N

To revoke probation, the state must provide clear and convincing evidence of 

probation violations. Minn. R. Crim. P. 27.04, subd. 2(1)(c)b. This court will not reverse 

a probation revocation unless there has been a clear abuse of the district court’s broad 

discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). 
6

To revoke probation, the district court must (1) specify the probation condition 

that has been violated, (2) find that the violation was inexcusable or intentional, and 

(3) determine whether the need for confinement outweighs the policies favoring 

probation. Id. at 250. Appellant does not challenge the district court’s determination that 

the first two criteria for revoking probation were met. 

As to the third criterion, the need for confinement outweighs the policies favoring 

probation when the record, including the underlying offense and intervening conduct, 

shows that (1) confinement is necessary to protect the public from further criminal 

activity; (2) confinement can most effectively provide the setting for the offender’s 

needed correctional treatment; or (3) not revoking probation would unduly depreciate the 

seriousness of the violation. Id. at 251. The district court concluded that “[T]o not 

execute the sentence would depreciate the seriousness of these most recent violations and 

. . . confinement is necessary to protect the public from further criminal activity.”

Appellant argues that the district court abused its discretion because (1) “[his] 

violations were not so serious that execution of the 66-month sentence was the only 

appropriate remedy”; (2) “there were meaningful alternative sanctions available, like jail 

time and/or continued treatment”; and (3) “the more appropriate option [would have 

been] imposing additional time in the local jail, . . . additional time on electric home 

monitoring,” and/or “any other appropriate programming like chemical dependency 

treatment as a consequence for appellant’s violations.” But this argument ignores the 

following facts: (1) the additional jail time, home monitoring, and treatment appellant 

identified as “a more appropriate option” had been repeatedly tried, without success;
7

(2) this was appellant’s fourth violation in 17 months while on probation; and (3) only a 

short time passed between appellant’s release from jail for a previous violation and 22 

November, when he told his agent he was at home, left his home, absconded, and failed 

to maintain contact with his agent for 35 hours.

The district court did not abuse its discretion in revoking appellant’s probation.

Affirmed.